Jones v. Black

• Decision Date: 19 July 1976
• Citation: 539 S.W.2d 123
• Parties: Anthony Lamar JONES, a minor, by next friend, Olivia Bell, Petitioner, v. Dr. Billy Gene BLACK et al., Respondents. 539 S.W.2d 123
• Court: Tennessee Supreme Court

Page 123

539 S.W.2d 123

Anthony Lamar JONES, a minor, by next friend, Olivia Bell, Petitioner, v. Dr. Billy Gene BLACK et al., Respondents.

539 S.W.2d 123

Supreme Court of Tennessee.

July 19, 1976.

Charles G. Wright, Jr., Chattanooga, for petitioner.

E. Blake Moore, Spears, Moore, Rebman & Williams, Chattanooga, for respondents.

OPINION

HARBISON, Justice.

This action was brought on behalf of a minor child to recover damages for the wrongful death of his mother. Her death occurred on June 13, 1971, following Caesarean surgery in connection with the birth of the child for whose use the suit was brought.

The action was not filed until January 22, 1973, more than one year after the date of the death of decedent. The trial court and the Court of Appeals both held the claim was barred by the one-year statute of limitations, T.C.A. § 28--304, and this Court granted certiorari to consider the matter further.

While there is no specific statute of limitations contained in the Tennessee wrongful death statutes, T.C.A. §§ 20--607 Et seq., the rule has long been followed in this state that the Tennessee statutes, in theory, preserve the right of action which the deceased himself would have had, and they basically have been construed as falling within the 'survival' type of wrongful death statutes. For many year, the courts of this state have applied the one-year statute of limitations contained in T.C.A. § 28--304, governing actions for personal injuries, to actions for wrongful death, regardless of the minority or other disability of any beneficiary of the action. See Whaley v. Catlett, 103 Tenn. 347, 53 S.W. 131 (1899).

In the present case, the decedent herself was a minor and, the beneficiary, of course, was a newborn child. The Court is asked to re-examine its previous rulings upon the question of the statute of limitations, and, in effect, to hold that the right of action actually accrues to the beneficiary, and that the minority or other disability of the beneficiary should prevent the running of the statute of limitations until after the removal of such disability, pursuant to the general savings statute, T.C.A. § 28--107.

That statute provides as follows 'If the person entitled to commence an action is, at the time the cause of action accrued, either (1) within the age of eighteen (18) years, or (2) of unsound mind, such person, or his representatives and privies, as the case may be, may commence the action, after the removal of such disability, within the time of limitation for the particular cause of action, unless it exceeds three (3) years, and in that case within three (3) years from the removal of such disability.'

The Court has given careful consideration to the contention of the petitioner, and were we construing the Tennessee wrongful death statutes for the first time, a construction such as that contended for by the petitioner would have considerable appeal.

The nature and theory of the Tennessee wrongful death statutes, however, have been much litigated over a long period of time, and the rules under which the statutes have been consistently applied have become well settled, particularly the rule governing the measure of damages to be applied for the wrongful death of a decedent within this state. It is the opinion of the majority of the Court that to now hold that the right of action accrues to the beneficiary, and that the statute of limitations in a death action would depend upon the age or competency of the beneficiary, would be contrary to the basic theory and construction of the wrongful death statutes as laid down in many cases in this state over a long period of time. This in all probability, would impinge upon the theory as to the measure of damages which, in the opinion of the majority, is a more equitable one than that applied in states where the wrongful death statutes are deemed to create a 'new cause of action' in the beneficiary.

It is true, as pointed out in the dissenting opinion of Justice Brock, and as pointed out by almost all commentators on the Tennessee wrongful death statutes, that the statutory provisions in Tennessee are somewhat ambiguous. They provide for elements of damages consistent with a theory of the survival of the right of action of the deceased but also allow damages consistent, to some degree, with the creation of a new cause of action in the beneficiaries. See Gamble, Actions for Wrongful Death in Tennessee, 4 Vand.L.Rev. 289 (1951); Smedley, Wrongful Death Actions in Tennessee, 27 Tenn.L.Rev. 447 (1960).

Despite this apparent ambiguity in language, however, the Tennessee courts have consistently for nearly a century construed the Tennessee wrongful death statutes as being of the survival type, and as preserving the right of action which the deceased would have had, had he survived. This may, indeed, be a fiction, but it is one which is well settled and is well established in our case law, and which was thoroughly considered and discussed in a number of cases near the end of the nineteenth and during the early part of the twentieth century.

T.C.A. § 20--614, which permits the allowance of certain damages to the beneficiaries, in addition to damages for the life of the deceased, had its origins in Chapter 186 of the Public Acts of 1883, and was added to the original wrongful death statutes passed much earlier in the nineteenth century. The 1883 statute, upon which the dissenting opinion places emphasis, was construed in a number of cases, all of which are discussed in the leading case of Davidson Benedict Co. v. Severson, 109 Tenn. 572, 72 S.W. 967 (1902). After lengthy review of all of the cases, the Court said:

'Regarding these cases all together in one comprehensive view, from the earliest to the latest, a striking fact appears, viz. that in all of them only one right of action is recognized--that of the deceased--and that they all, so far as they speak to the subject at all, deny that any independent right of action exists in the widow, the children, or the next of kin.' 109 Tenn. at 613, 72 S.W. at 977.

In that case the Court recognized that the statutory provisions do permit two classes of damages in the same action, these being damages for the injury to the deceased himself, and certain incidental damages to the widow and children. Both before the decision in that case and since however, the Tennessee courts have consistently construed the statutes to be of the survival type, and to preserve the right of action of the deceased.

Probably no case more graphically demonstrates the theory to which the Tennessee courts have been firmly committed in construing the wrongful death statutes than that of Memphis Street Ry. Co. v. Cooper, 203 Tenn. 425, 313 S.W.2d 444 (1958). In that case a group of beneficiaries purporting to be the widow and children of the deceased appeared at counsel table when an action for his wrongful death was tried. There was a verdict in favor of the plaintiffs under a charge given by the trial court to the jury that the measure of damages was the pecuniary value of the life of the deceased. Thereafter, it developed that the persons seated at counsel table were not the legitimate beneficiaries of the deceased, and the trial court granted a new trial on the basis of newly discovered evidence. At the second trial there was a verdict for the defendant. The record revealed that the deceased had two surviving brothers, however, who would have been proper beneficiaries under the statute, if in fact the persons claiming to be his widow and children were not such.

The Court of Appeals, therefore, reversed the action of the trial court in granting a new trial and reinstated the original jury verdict, and its action was affirmed by this Court in an opinion by Chief Justice Burnett. In this opinion the Court reiterated the firmly settled theory in this state that:

'. . . the action which survived was not a new action in the widow and children or the heirs, but they could only recover for the pecuniary value of the life of the deceased and they only had the same rights that he had regardless of who the widow and children were . . ..' 203 Tenn. at 430, 313 S.W.2d at 447.

In affirming the action of the Court of Appeals, reinstating the jury verdict, the Court said:

'We have reached this conclusion because in the first instance the right of action herein was that of the dead man and the right which he would have possessed if he had lived and the recovery is in his right, not in the right of the widow or children or brothers. Sharp v. Cincinnati N.O. & T.P. Ry. Co., 133 Tenn. 1, 179 S.W. 375, Ann.Cas.1917C, 1212; Oman v. Delius, 162 Tenn. 192, 35 S.W.2d 570. This right of action is statutory (Sections 20--607, 20--608, 20--609, T.C.A.), so that both the action and the procedure for distribution of the proceeds of any recovery rests on the statute. Black v. Roberts, 172 Tenn. 20, 108 S.W.2d 1097.

'A suit of the kind here involved must be treated as if the injured party had brought it. Whaley v. Catlett, 103 Tenn. 347, 53 S.W. 131. . . .

'Thus it is seen by our authorities, which are absolutely uniform in this State up to the present time, that the recovery for the death of Cooper is not based on whether he left a widow and children or what-not, but is based upon the pecuniary value of the life of the man himself.' 203 Tenn. at 431--433, 313 S.W.2d at 447--448.

The rationale of the dissenting opinion in the present case, in our opinion, represents a departure from the long and well-settled construction given to the Tennessee wrongful death statutes that they are to be treated as survival statutes rather than creating a new cause of action.

The decision in Whaley v. Catlett, 103 Tenn. 347, 53 S.W 131 (1899) and the interpretation made therein of the original wrongful death statutes and the 1883 amendment have been consistently followed for over seventy-seven years. These have become an integral part of the Tennessee wrongful death st...